https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1071

Omollo (Suing as the Legal Representative of the Estate of John Omollo Nyakongo (Deceased) t/a HR Ganihee & Sons) v Kenya Power & Lighting Company Limited (Civil Appeal E021 of 2022) [2026] KECA 1071 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1071 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal E021 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Nathan Omoth Omollo (Suing as the Legal Representative of the Estate of John Omollo Nyakongo (Deceased) t/a HR Ganihee & Sons) Appellant and Kenya Power & Lighting Company Limited Respondent (Being an appeal against the Ruling and Orders of the High Court of Kenya at Malindi (S. M. Githinji, J.) dated 22nd February 2022 in HCCC No. 6 of 2021) Judgment 1.The instant appeal is against the ruling of High Court of Kenya at Malindi (F. N. Githinji, J.) dated 22nd February 2022 by which the learned Judge allowed the respondent’s (Kenya Power and Lighting Co. Ltd) preliminary objection raised on 5th July 2021 seeking orders, inter alia, that the appellant’s suit be dismissed with costs on the grounds that the court lacked jurisdiction to entertain the suit; that the appellant’s cause of action, having been founded on contract, was barred by effluxion of time by dint of section 4(1) of the Limitation of Actions Act, Cap. 22; that the appellant had no cause of action against the respondent; and that the proceedings were an abuse of the court process, defective, ill-founded and lacked merit. 2.The brief background is that the late John Omollo Nyakongo sued the respondent vide a plaint dated 25th May 2021 and filed in HCCC No. 6 of 2021 in a bid to enforce payment by the respondent of Kshs. 143,522,762/68; interest thereon from the date of filing suit; and costs of the suit. The deceased’s claim was on account of construction works allegedly undertaken for the benefit of the respondent pursuant to a contract entered into between him and the respondent vide terms of the respondent’s letter of offer dated 7th April 2006 and accepted by the deceased on 9th April 2006. 3.In its statement of defence dated 5th July 2021, the respondent denied the deceased’s claim and averred that it would raise a preliminary objection on the grounds that the suit contravened the provisions of section 4(1) of Cap. 22. 4.Along with its defence, the respondent filed a preliminary objection of even date pleading limitation of action, and prayed that the deceased’s suit be dismissed. 5.The respondent’s preliminary objection was heard by way of written submissions and determined vide the impugned ruling dated 22nd February 2022 by which S. M. Githinji, J. allowed the objection upon finding that the deceased’s suit was statute-barred. 6.Dissatisfied with the learned Judge’s decision, the deceased moved to this Court on appeal essentially on the grounds that: the trial court failed to recognize the respondent’s email dated 25th July 2014 by which it requested the appellant to hold the matter in abeyance; the trial court failed to hold that the instructions from the respondent given on 25th July 2014 to the appellant to hold the matter in abeyance amounted to an estoppel against the respondent from raising limitation of time; the respondent’s further response vide its email dated 22nd May 2018 to the appellant’s demand letter dated 16th April 2018 was disregarded; the issue whether the respondent was a government or a public authority to rely on the provisions of the Public Authorities Limitations of Actions Act was not addressed; and that the decision arrived at by the trial court dated 22nd February 2022 was wholly against the weight of the law and evidence adduced by the appellant. 7.In support of the appeal, M/s. Mutisya Mwanzia & Ondeng Advocates filed written submissions, a list and bundle of authorities dated 13th April 2023 while, in rebuttal, M/s. McKay & Company filed written submissions, a list of authorities and case digest dated 28th April 2023, all of which we have duly considered. 8.According to the record, John Omollo Nyakongo died on 16th May 2024 whereupon Nathan Omoth Omollo took out Grant of Letters of Administration ad Litem to the estate of the deceased. 9.By an order dated 8th May 2025, Murgor, JA. ordered the substitution of the deceased John Omollo Nyakongo by his personal representative, Nathan Omoth Omollo (the appellant). 10.To our mind, two issues commend themselves for our determination, namely: whether the deceased’s suit was statute barred under and by virtue of section 4(1) of Cap. 22; and, if the answer is in the affirmative, whether the respondent’s letter (referred to by the deceased as an email) dated 25th July 2014 revived the deceased’s cause of action. 11.On the first issue, section 4(1) of Cap. 22 is self-explanatory. It reads:“4.Actions of contract and tort and certain other actions(1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued—(a)actions founded on contract;…” 12.This Court in Divecon Ltd v Samani [1995–1998] 1 EA 48 stated that:“No one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain … an action that is brought in contract six years after the cause of action arose…” 13.It is instructive that the letter dated 25th July 2014 allegedly requesting the deceased to “hold the matter in abeyance” as the respondent sought to “… carry out investigations and respond substantively” to his demand letter dated 13th June 2014. Beyond those words, we find nothing to suggest that the respondent acknowledged the deceased’s claim within the meaning of section 44(1)(a) of the Act so as to revive the cause of action, which expired on or about 9th April 2012, six years after the contract came into force. It is not lost on us that the deceased’s suit was instituted in May 2021, a whole 15 years from the date of the contract. 14.To our mind, the import of the letter aforesaid was merely to request the deceased not to take any precipitate action against the respondent pending investigations. Neither did the request found any ground to invoke the doctrine of estoppel. Even if it did, which it did not, it took another 9 years before the deceased filed suit. In effect, his cause of action expired twice over. 15.We have further considered the contents of the respondent’s letter (also erroneously referred to by the deceased as an email) dated 22nd May 2018 in which the respondent replied to the deceased’s further demand vide a letter dated 16th April 2018 stating thus: “Kindly note that KPLC is not and therefore [sic] declines to pay any amounts over and above what has already been paid”. Once again, this express denial does not, in our respectful view, amount to an estoppel or revive the cause of action as contended by the appellant. As held by this Court in Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104, only statutory events, such as part-payment, can extend time. 16.An ‘estoppel’ is a principle that prevents a person from going back on their word or contradicting a previous action if someone else has relied on it. It essentially stops ("estops’) a party from claiming a new fact or changing their story to prevent unfairness or fraud. The appellant has not demonstrated how denial of liability by the respondent, or the request to withhold action pending investigations, amounts to an estoppel. 17.It is trite law that denial of claim and request to withhold action does not of itself constitute estoppel. The English Court of Appeal in Ace Insurance SA-NV v Seechurn [2002] EWCA Civ 67 laid down the principle that, in order to establish a promissory or equitable estoppel capable of preventing a party from relying on the limitation period, the claimant must establish, at minimum:a.a clear and unequivocal promise or representation, not merely an inference drawn from the general course of negotiations;b.an intention that the representation should be acted upon; andc.detrimental reliance by the claimant, making it inequitable for the representor to resile from the promise. 18.In conclusion, a mere denial of liability, or a request that a claimant withhold proceedings pending further investigation or negotiation, does not, without more, constitute a clear and unequivocal representation that the defendant will not rely on the limitation period. In effect, a respondent/defendant who denies a contractual claim and requests that the claimant withhold action pending investigation does not, by that conduct alone, raise an estoppel that would operate to revive a time-barred cause of action or suspend the running of limitation. 19.In view of the foregoing, we find that the appeal lacks merit and is hereby dismissed with costs to the respondent. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGOR....................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.....................................JUDGE OF APPEALG. W. NGENYE-MACHARIA....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar